Citation NR: 9726208
Decision Date: 07/29/97 Archive Date: 08/06/97
DOCKET NO. 94-22 859 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Whether VARO’s September 1985 rating decision, which
denied entitlement to nonservice-connected pension, contained
clear and unmistakable error.
2. Whether VARO’s January 1991 rating decision, which denied
entitlement to service-connection for post traumatic stress
disorder, contained clear and unmistakable error.
3. Whether new and material evidence sufficient to warrant
reopening of the appellant’s claim for entitlement to service
connection for post traumatic stress disorder has been
submitted.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
M. J. Bohanan, Counsel
INTRODUCTION
The appellant served on active duty from July 1968 to April
1970.
This appeal arises from a September 1993, Department of
Veterans Affairs Regional Office, Montgomery, Alabama (VARO)
rating decision, which denied the appellant entitlement to
service connection for post traumatic stress disorder on the
basis that new and material evidence sufficient to warrant
reopening of his claim had not been submitted.
The Board remanded the appellant’s claim for adjudication of
the inextricably intertwined issues of whether VARO’s
September 1985 and January 1991 rating decisions contained
clear and unmistakable error raised on appeal. VARO
determined no clear and unmistakable error, and the
appellant’s claim has been returned to the Board for
adjudication.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, the appellant contends that he manifests post
traumatic stress disorder as the result of his military
service. He also claims that VARO should have inferred a
claim for service-connection for post traumatic stress
disorder in its September 1985 rating decision, and, in the
alternative, that VARO failed to assist him in the development
of his claim in its January 1991 rating decision.
Also, implicit in the appellant’s claim for entitlement to
service connection for post traumatic stress disorder is the
alternative argument that, since VARO’s January 1991 rating
decision, he has submitted new and material evidence which is
sufficient to allow the VA to reopen his claim.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
For the following reasons and bases, it is the decision of
the Board that the preponderance of the evidence is against
the appellant’s claim that VARO’s September 1985 and January
1991 rating decisions contained clear and unmistakable error.
It is also the decision of the Board that new and material
evidence sufficient to warrant reopening of the appellant’s
claim for service connection for post traumatic stress
disorder has not been submitted.
FINDINGS OF FACT
1. The appellant served on active duty from April 1968 to
April 1970.
2. The appellant is not service-connected for post traumatic
stress disorder.
3. VARO denied the appellant entitlement to nonservice-
connected pension benefits in a September 1985 rating
decision.
4. A diagnostic impression of post traumatic stress disorder
was provided in private treatment records in 1985, and a VA
hospitalization summary for a period of admission from January
1990 to March 1990 reported a diagnosis of post traumatic
stress disorder. However, a VA examination conducted in
September 1990 indicated that the appellant did not meet the
criteria of post traumatic stress disorder.
5. VARO denied the appellant entitlement to service
connection for post traumatic stress disorder in a January
1991 rating decision.
6. VARO found no new and material evidence sufficient to
reopen the appellant’s claim for entitlement to service
connection for post traumatic stress disorder in September
1993.
7. Evidence submitted with regard to the appellant’s request
to reopen his claim for service connection for post
traumatic stress disorder includes: VA treatment records,
dated prior to the appellant’s September 1990 VA
examination, and a VA hospitalization summary for a period
of admission from May 1993 to June 1993 which indicated an
Axis I diagnosis of schizophrenia.
8. Evidence provided since VARO’s January 1991 decision is
cumulative regarding the appellant’s psychiatric treatment
prior to his September 1990 VA examination, and, when
viewed in the context of the earlier evidence of record,
does not raise a reasonable possibility that the prior
outcome of the claim could change.
CONCLUSIONS OF LAW
1. The VARO rating decision of September 1985 did not contain
clear and unmistakable error. 38 U.S.C.A. § 7105(c) (West
1991); 38 C.F.R. §§ 3.104, 3.105(a), 3.400(b),(k) (1996).
2. The VARO rating decision of January 1991 did not contain
clear and unmistakable error. 38 U.S.C.A. § 7105(c) (West
1991); 38 C.F.R. §§ 3.104, 3.105(a), 3.400(b),(k) (1996).
3. New and material evidence sufficient to reopen the claim
for service connection for post traumatic stress disorder has
not been submitted. 38 U.S.C.A. § 5108, 7105 (West 1991);
38 C.F.R. §§ 3.156(a), 20.1103 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board will first review the procedural and evidentiary
history.
The appellant originally filed for compensation in March 1978.
VA clinical treatment records and service medical records were
submitted, and VARO granted the appellant entitlement to
service connection for residuals of shell fragment wounds,
noncompensably disabling, in May 1978.
The appellant filed a notice of disagreement with VARO’s 0
percent evaluation in May 1978, and a VA examination was
conducted in July 1978 for residuals of shell fragment wounds.
VARO granted the appellant a 10 disability evaluation for
retained foreign bodies in a July 1978 rating decision.
The appellant applied for life insurance in February 1979. He
reported that he had dizzy spells and a “nervous condition.”
He also claimed to have an ulcer and high blood pressure.
VARO denied the appellant entitlement to service connection
for a nervous condition, hypertension, and an ulcer, in a
March 1979 rating decision.
Private medical treatment records from the Southwest Alabama
Mental Health Center, dated from June 1985 to July 1985, were
submitted, which reported that the appellant complained of
auditory hallucinations. A July 1985 entry reported that the
appellant had recently been hospitalized for alcohol
dependence; alcohol withdrawal delirium; essential
hypertension; and mild polycythemia. The examiner’s
diagnostic impression after interviewing the appellant was
post traumatic stress disorder and alcoholism. The examiner
reported that the appellant’s PTSD apparently originated from
his experiences in Vietnam, and that he used alcohol as a form
of self medication. It was also noted that the appellant had
seizures related to alcohol abuse.
The appellant filed an income and net worth statement, and
reported that he could not work. He claimed that he wanted
the VA to re-evaluate his service-connected disabilities and
determine entitlement to pension benefits.
A May 1985 treatment entry reported that the appellant was
seen for agent orange, but he arrived intoxicated with alcohol
and claimed to be hearing voices and having hallucinations.
The examiner diagnosed psychosis, and the appellant was
transferred to psychiatry service.
A VA hospital summary for a period of hospitalization from May
1985 to June 1985 was obtained, which indicated that the
appellant had been admitted for complaints of active
hallucinations. His diagnoses included: alcohol dependence
continuous; alcohol withdrawal delirium; essential
hypertension; mild polycythemia; and calculus, caries,
periodontitis.
VARO denied the appellant’s claim for nonservice-connected
pension in a September 1985 rating decision. The appellant
was notified of that denial in an October 1985 letter.
In June 1988, the appellant filed for an increased rating for
his service-connected disabilities, entitlement to service
connection for post traumatic stress disorder, and nonservice-
connected pension.
A VA hospitalization summary for a period of admission from
June 1988 to July 1988, reported that the appellant was
admitted for acute delirium, probably secondary to Dilantin
toxicity; Dilantin toxicity; hypertension; post traumatic
stress disorder, stable; seizure disorder, probably secondary
to remote head injury; and alcohol dependence in remission, by
history.
The appellant again reported that he was unable to work in
July 1988.
Additional treatment records from Southwest Alabama Mental
Health Center, dated from July 1986 to September 1988, were
obtained, which reported that the appellant had returned for
medication. He claimed that he was not sleeping, and was
drinking again. He admitted to auditory hallucinations and
difficulty maintaining employment. In an August 1986
treatment entry, the examiner noted a previous diagnosis of
post traumatic stress disorder and a current diagnosis of
schizophrenia, chronic undifferentiated. The appellant
continued to receive treatment and medications. His diagnosis
was continued as schizophrenia, chronic undifferentiated in
January 1987, and a September 1988 psychiatric assessment
indicated organic mental disorder not otherwise specified on
Axis I, with alcohol and cannabis dependence on Axis II.
The appellant was scheduled for several VA examinations, for
which he failed to report in 1989.
The appellant filed for service connection for post traumatic
stress disorder in March 1990.
He failed to report for a VA examination scheduled in May
1990. His examination was rescheduled and conducted in
September 1990. A psychiatric evaluation revealed that the
appellant “doesn’t present criteria for PTSD” and the examiner
diagnosed schizophrenia.
A VA hospitalization summary summary for a period of admission
from January 1990 to March 1990, prior to the appellant’s VA
examination, indicated that he was admitted with a primary
diagnosis of chronic post traumatic stress disorder, rule out
schizophrenia and organic brain syndrome; hypertension;
seizure disorder; and dental caries.
VARO denied the appellant’s claim for entitlement to service
connection for post traumatic stress disorder, as not being
found on his last examination, in a January 1991 rating
decision.
The appellant filed to reopen his claim for PTSD in July 1991.
VA treatment records dated in August 1989 and May 1990 were
submitted, which indicated that the appellant was treated for
hypertension and PTSD symptoms, respectively.
VARO again denied the appellant’s claim for service connection
for PTSD in an August 1991 rating decision, on the basis that
the evidence submitted pre-dated his September 1990 VA
examination revealing no PTSD.
The appellant attempted to file a notice of disagreement in
December 1992. However it was not timely filed.
The appellant filed to reopen his claim for service connection
for PTSD in March 1993.
A VA hospitalization summary for a period of admission from
May 1993 to June 1993 was submitted, which reported that the
appellant’s Axis I diagnosis was schizophrenia, paranoid type.
He was admitted for increasing paranoid ideations. Additional
diagnoses included: seizure disorder; hypertension; dental
periodontitis; alcohol abuse; rule out organicity or PTSD;
marijuana abuse; tinea pedis; and calluses of the feet.
VARO denied reopening the appellant’s claim for service
connection for PTSD on the basis that the evidence submitted
was not new and material to warrant reopening of his claim in
a September 1993 rating decision, and the appellant filed a
notice of disagreement.
As mentioned earlier, the Board remanded the appellant’s claim
in a September 1996 decision for adjudication of the issues
raised by the appellant on appeal, of whether VARO committed
clear and unmistakable error in its September 1985 and January
1991 rating decisions. VARO found no clear and unmistakable
error in its prior denials, and the appellant’s claim was
returned to the Board.
Clear and Unmistakable Error
1. Whether VARO’s September 1985 rating decision, which
denied entitlement to nonservice-connected pension, contained
clear and unmistakable error.
2. Whether VARO’s January 1991 rating decision, which denied
entitlement to service-connection for post traumatic stress
disorder, contained clear and unmistakable error.
The unappealed September 1985 and January 1991 rating
decisions are final. 38 U.S.C.A. § 7105 (West 1991);
38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1996). Such final
decisions may, however, be reversed or amended where evidence
establishes clear and unmistakable error. 38 C.F.R.
§ 3.105(a) (1996).
The Board wishes to emphasize that the United States Court of
Veterans Appeals has consistently stressed the rigorous nature
of the concept of clear and unmistakable error. “Clear and
unmistakable error is an administrative failure to apply the
correct statutory and regulatory provisions to the correct and
relevant facts: it is not mere misinterpretation of facts.”
Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). “‘Clear
and unmistakable error’ requires that error, otherwise
prejudicial,...must appear undebatably.” Akins v. Derwinski,
1 Vet.App. 228, 231 (1991). Clear and unmistakable errors
“are errors that are undebatable, so that it can be said that
reasonable minds could only conclude that the original
decision was fatally flawed at the time it was made.” Russell
v. Principi, 3 Vet.App. 310, 313-4 (1992). “It must always be
remembered that CUE is a very specific and rare kind of
‘error’.” Fugo v. Brown, 6 Vet.App. 40, 43 (1993).
In order for a claim of clear and unmistakable error to be
reasonably raised, “the claimant must provide some degree of
specificity as to what the alleged error is, and, unless it is
the kind of error that, if true, would be CUE on its face,
persuasive reasons must be given as to why the result would
have been manifestly different but for the alleged error’.”
Eddy v. Brown, 9 Vet.App. 52, 57 (1996) [emphasis added by the
Court].
In order to determine whether the September 1985 and January
1991 rating decisions contained clear and unmistakable error,
the Board reviews the evidence which was before the rating
board “at that time.” 38 C.F.R. § 3.104(a)(1996). “A
determination that there was ‘clear and unmistakable error’
must be based on the record that existed at the time of the
prior ... decision.” Russell, supra. In other words, the
Board cannot apply the benefit of hindsight to its evaluation
of the rating board’s actions in 1985 and 1991 in determining
whether clear and unmistakable error existed.
The Court has held that a claim that VARO failed in its duty
to assist is not a valid claim of clear and unmistakable
error. Elkins v. Brown, 8 Vet.App. 391 (1995); Caffrey v.
Brown, 6 Vet.App. 377 (1994). The duty to assist includes
liberally interpreting the appellant’s claim. EF v.
Derwinski, 1 Vet.App. 324 (1991).
The Board notes that VARO’s September 1985 decision pre-dated
the establishment of the Court, and the development of the
“duty to assist.” At the time of VARO’s September 1985 rating
decision, 38 C.F.R. § 3.150 (1985) required that a “specific
claim in the form prescribed by the Administrator must be
filed in order for benefits to be paid to any individual under
the laws administered by the VA.” An informal claim required
that the appellant “identify the benefit sought.” 38 C.F.R.
§ 3.155 (1985). As the appellant specifically requested that
his service-connected disabilities be re-evaluated and claimed
entitlement to “ pension”, VARO did not commit clear and
unmistakable error in not finding a claim for service
connection for PTSD.
Therefore, the Board finds that the evidence does not
substantiate that VARO committed clear and unmistakable error
in its September 1985 rating decision.
Likewise, even if the Board concedes that VARO arguably
breached its duty to assist the appellant in failing to
schedule an additional VA examination prior to its January
1991 rating decision, as noted by the Court in Caffrey, that
breach of duty itself does not constitute clear and
unmistakable error, and the Board finds no clear and
unmistakable error in VARO’s January 1991 rating decision.
New and Material Evidence
3. Whether new and material evidence sufficient to warrant
reopening of the appellant’s claim for entitlement to service
connection for post traumatic stress disorder has been
submitted.
As was indicated in the Introduction above, the appellant’s
claim for service connection was the subject of an
unfavorable VARO decision in January 1991. The decision of
VARO is considered to be final. 38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. § 20.1103 (1996).
Under pertinent law and regulations, as interpreted by the
United States Court of Veterans Appeals, the VA may reopen
and review a claim which has been previously denied if new
and material evidence is submitted by or on behalf of the
appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§20.1103 (1996); and Manio v. Derwinski, 1 Vet.App. 140
(1991).
In evaluating whether the veteran's current claim must be
reopened and readjudicated on the merits, the Board considers
all evidence presented or secured since the time that the
claim was finally disallowed on any basis, not only since the
time that the claim was last disallowed on the merits. See
Evans v. Brown, 9 Vet.App. 273 (1996).
“New” evidence means evidence which is not merely cumulative
or redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991).
“Material” evidence is evidence which is relevant and
probative of the issue at hand and which, furthermore, leads
to a reasonable possibility that the new evidence, when
viewed in the context of all of the evidence of record, would
change the outcome of the case. Smith v. Derwinski,
1 Vet.App. 178 (1991).
At the time of VARO’s January 1991 denial of the appellant’s
claim for service connection for post traumatic stress
disorder, pertinent evidence of record included: private
treatment records, which indicated a diagnostic impression of
PTSD in July 1985, that was subsequently changed to
schizophrenia in August 1986; VA hospitalization summaries
indicating a secondary diagnosis of PTSD during a period of
hospitalization for Dilantin toxicity in 1988, and a primary
diagnosis of chronic PTSD, rule out schizophrenia and organic
brain syndrome, in early 1990; and a VA examination summary
which subsequently reported that the appellant did not
present the criteria for PTSD in September 1990.
VARO denied the appellant’s claim on the basis that post
traumatic stress disorder was not shown to exist at the time
of the appellant’s September 1990 VA examination.
Following VARO’s January 1991 decision, the appellant
submitted additional evidence, and his claim for service
connection for post traumatic stress disorder on the basis
that new and material evidence sufficient to reopen his claim
had been submitted, was considered and denied by VARO in a
September 1993 decision.
Evidence received in support of the appellant’s request to
reopen his claim includes: VA treatment records pre-dating
his September 1990 VA examination finding that he did not
present the criteria for a diagnosis of PTSD, and a VA
hospitalization summary for a period of admission from May
1993 to June 1993 indicating a diagnosis of schizophrenia,
paranoid type.
The additional evidence, is clearly “new”, in that it was not
of record at the time of VARO’s January 1991 denial of the
appellant’s claim. However, the additional evidence is not
"material" in that it does not establish that the appellant
has PTSD as the result of stressors in service. The
subsequently furnished medical evidence provides added detail
concerning the appellant’s post-service psychiatric
condition, but it is not probative of whether the appellant
currently has PTSD as the result of stressors in service.
The additional statements by the appellant, claiming that he
currently has PTSD that originally manifested as the result of
stressors in service are only redundant of statements
previously of record, and as such, they are cumulative because
they essentially reiterate earlier assertions. See Reid v.
Derwinski, 2 Vet.App. 312, 315 (1992). His additional
statements are also not material, as, being a layperson, he
has no competence to render a medical opinion or diagnosis.
See Moray v. Brown, 5 Vet.App. 211 (1993); See also, Espiritu
v. Derwinski, 2 Vet.App. 609 (1992).
As new and material evidence has not been submitted, the
claim for service connection for PTSD is not reopened and the
January 1991 VARO decision remains final. Further analysis
of the issue must cease, and the Board has no further duty to
assist the appellant with development of his claim. Kehoskie
v. Derwinski, 2 Vet.App 31 (1991).
ORDER
The September 1985 rating decision does not contain clear and
unmistakable error. The benefit sought on appeal remains
denied.
The January 1991 rating decision does not contain clear and
unmistakable error. The benefit sought on appeal remains
denied.
New and material evidence sufficient to reopen a claim for
entitlement to service connection for post traumatic stress
disorder having not been submitted, the claim is not
reopened.
C. P. RUSSELL
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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